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[2022] ZAFSHC 237
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Big Cedar Trading 6 (Pty) Ltd v Nkwe Vaccination Clinic (Pty) Ltd (2481/2022) [2022] ZAFSHC 237 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2481/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
BIG
CEDAR TRADING 6 (PTY) LTD
(Registration
number:
2002/025827/07) Applicant
and
NKWE
VACCINATION CLINIC (PTY) LTD
Respondent
(Registration
number: 2016/536092/07)
HEARD
ON:
15
SEPTEMBER 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII
on 16 SEPTEMBER 2022. The date and time for hand-down is deemed to be
16 SEPTEMBER 2022 at 15H30.
[1]
The applicant, a duly registered and incorporated private company,
seeks the ejectment
of the respondent from the immovable property of
which it is the owner situated at Aescalapium Medical Centre, Kruis
Street, Parys.
The cornerstone of the case for the applicant is that
the existing lease agreement was terminated. The respondent, also a
similar
business entity, is resisting the application ostensibly on
the basis that a second lease agreement was entered into between the
parties and is still valid. Therefore, there is no valid termination.
The respondent contends that it is not in unlawful occupation
of the
immovable property
[2]
The side show to the main matter is the application for condonation
for the delivery
of the respondent’s affidavit. The court was
informed at the commencement of the oral hearing that the parties
have reached
a settlement on it to the effect that it is no longer a
live issue between them. On that basis, the application for
condonation
is granted.
[3]
It is apposite at this stage to set out the chronology of the facts
that brought the
parties to this unenviable point. On 30 November
2018 the parties entered into a written lease agreement which was to
run for a
period of one (1) year starting 15 December 2018 and end on
15 November 2019.
[1]
It is
common cause that the lease agreement expired by effluxion of time.
It was not renewed or cancelled but the lease agreement
continued on
a month to month basis as stipulated in paragraph 32 of the written
lease agreement. This provision stated that it
can be ended from
either side by giving at least one-month notice.
[4]
The applicant gave the
respondent the required notice on 1 February 2022. The applicant
was
even generous that the period granted to the respondent was set at
two (2) months instead of the required one (1) month. The
response
from the respondent is clearly contained in an e-mail forwarded to
the applicant. In it, the respondent tabulated various
reasons that
it will be humanely impossible to move within the specified period.
Further that it is faced with a real problem of
acquiring suitable
space within the magisterial district of Parys.
[2]
In fact, this was a plea for an extension instead of a challenge that
there was something untoward about the notice of cancellation.
[5]
According to the applicant the immovable property was sold with
effect from 1 April
2022. On that day the occupation and risk of the
immovable property ought to pass to the new owner who is not a party
to the proceedings
before this court. At the heart of the opposition
to the application, is the contention that a valid second written
lease agreement
was concluded between the parties. The “new”
lease agreement was set to expire by effluxion of time on 30 November
2023. Further that any cancellation prior to the aforementioned date
was invalid. This aspect is denied by the applicant. The pillar
of
the contention of the respondent is that there is a genuine dispute
of facts and as such motion proceedings are unsuited in
the
circumstances.
[6]
Both parties are
ad idem
that in order to succeed in this
application the applicant must establish the following: -
1.
That it is the owner of the property.
2.
The agreement in terms of which the respondent occupied the property
has been validly cancelled.
3.
The respondent’s continued occupation
of the property is unlawful.
[3]
There
is no issue about the ownership of the immovable property. The
dispute centres on whether there was valid termination or not.
The
obvious effect of proving that the lease agreement has been validly
cancelled is that any subsequent occupation of the property
will be
unlawful.
[7]
To get to the nub of the dispute, the important aspect is to
determine whether a second
written lease agreement exists or not. The
standpoint of the applicant is that it does not. There were
negotiations which were
underway but those did not materialise into a
written lease agreement. The respondent holds the view that it does.
Alternatively,
it was argued that no final determination could be
made on the face of glaring dispute of facts and that the issues can
be properly
ventilated if the matter is referred for
viva voce
evidence to be led at a later date.
[8]
It is necessary to examine the surrounding circumstances pertaining
to the written
lease agreement that is so much at the centre of the
dispute.
[4]
Each and every page
of the disputed document is initialled by the deponents of the
founding and confirmatory affidavits respectively.
There is no
signature or initials appended on behalf of the respondent. The
explanation of the applicant is that there were talks
or negotiations
between them but nothing came to fruition. On the part of the
respondent there is no cogent explanation about the
anomaly.
[9]
The court was referred to the addendum entered into and signed by the
representative
of both entities on 26 and 28 July 2019 respectively.
It was argued on behalf of the respondent that it does not make sense
that
they would sign such an agreement if it was not to enter into a
new lease agreement. This argument is unsustainable because paragraph
2 thereof makes reference to the written lease agreement entered
between them on 30 November 2018. The one that has expired. It
is
effortless to come to a finding that there is no other agreement
except the one relied upon by the applicant.
[10]
The comparison between the valid written lease agreement and the
document purported to be the
current one does not come to the
assistance of the respondent. The first lease agreement was
substantially signed by both parties
and they adhered to all its
terms and conditions. The one relied upon by the respondent does not
even have a single signature on
behalf of the respondent. Clearly
these two (2) are beyond compare. The fact that the terms and
conditions are the same and only
signed on behalf of the applicant
does not elevate it to the status of a valid written lease agreement
between the parties. The
submission on behalf of the respondent is
that it lacks merit.
[11]
Another reason to conclude that no agreement was reached is found on
“FA 7” and “FA
8” annexed to the founding
affidavit. On 6 June 2019, the agent on behalf of the applicant
dispatched the addendum of the
lease agreement to the respondent. The
deponent to the opposing affidavit on behalf of the respondent wrote
back and stated that
she required clarity on some aspects, will
discuss them later with the landlord and is seeking legal advice.
That is about it.
The respondent’s papers do not have
allegations clarifying what then transpired from that point. The
question is how does
that translate into a valid agreement let alone
a written one. There cannot be talk of the existence of a valid
agreement under
these circumstances.
[12]
It is a principle of our law that generally applications are not
designed to resolve factual
disputes between the parties. They are
decided on common cause facts.
[5]
Probabilities and onus issues are not amenable to being determined in
motion court proceedings. The approach is that the court
has to
accept the facts averred by the applicant that were not disputed by
the respondent and the latter’s version insofar
as it was
plausible, tenable and credible.
[6]
It is undesirable to decide an application on affidavits where
material facts are in dispute.
[13]
These are of course dispute of facts between the parties about the
existence of the second written
lease agreement. However, the version
of the respondent is improbable to be relied on. This is one matter
where the allegations
made are so untenable that they are worth to be
rejected merely on the papers. There is no basis to hold that there
is a second
written lease agreement.
[14]
This court is inclined to grant the relief as prayed in the notice of
motion. There was a valid
termination and the applicant granted the
respondent reasonable period to vacate the immovable property.
Therefore, taking that
into consideration, granting the respondent
more days is more than reasonable in the circumstances.
[15]
On the issue of costs, this court was not provided with any reason
why the respondent must be
ordered to pay those on attorney and
client scale as the applicant has claimed.
[16]
The order granted is the following: -
16.1.
The respondent and any person(s) claiming to hold any title under it
are evicted from the immovable property known as Aescalapium
Medical
Centre, Kruis Street, Parys.
16.2.
All persons mentioned in paragraph 16.1
supra
must vacate the
immovable property on/or before Monday, 31 October 2022 and not to
return thereafter.
16.3.
In the event that the respondent does not comply with paragraph 16.2
supra
, the Sheriff, Parys and/or his/her duly appointed deputy
with or without the assistance from the South African Police Service
is
authorised and directed to evict the respondent or any person from
the immovable property.
16.4.
The respondent must pay costs on the party and party scale.
M.A.
MATHEBULA, J
On
behalf of the applicant:
Adv. F.F. Jacobs
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. W. Van Der Heever
Instructed
by: Du
Bruyn Attorneys
C/O
Webbers Attorneys
BLOEMFONTEIN
[1]
Page 26 – 40 of the Indexed Papers.
[2]
Page 69 – 70 of the Indexed Papers.
[3]
Shoprite Checkers (Pty) Ltd v Jardim
2004 (1) SA 502
(O) at
505E-507E.
[4]
Page 71 to 85 of the Indexed Papers.
[5]
Plascon-Evans Paints (Transvaal) Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[6]
Airports Company South Africa SOC Ltd v Airports Bookshops (Pty) Ltd
t/a Exclusive Books
2016 (4) All SA 665
(SCA) at para 5.